People v. Blackburn, Docket No. 78-929

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM; MAHER
• Citation: 94 Mich.App. 711,290 N.W.2d 61
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Leonard BLACKBURN, Defendant-Appellant.
• Decision Date: 09 January 1980
• Docket Number: Docket No. 78-929

Page 61

290 N.W.2d 61 94 Mich.App. 711 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
William Leonard BLACKBURN, Defendant-Appellant. Docket No. 78-929. Court of Appeals of Michigan. Jan. 9, 1980.
Rehearing Denied Feb. 28, 1980.
Released for Publication April 4, 1980.

Page 62

[94 Mich.App. 713] John D. Lazar, Hazel Park, for defendant-appellant.

[94 Mich.App. 712] Frank J. Kelley, Atty. Gen., Robert A. [94 Mich.App. 713] Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert Williams, Appellate Chief, Asst. Pros. Atty., Richard H. Browne, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and MacKENZIE and PIERCEY, ^* JJ.

PER CURIAM.

Defendant was convicted of three counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, by an Oakland County Circuit Court jury. He was sentenced to 60 to 90 years imprisonment on one count and life imprisonment on each of the other two counts, the sentences to run concurrently. From these convictions and sentences, defendant appeals as of right.

The first trial on these charges was dismissed when the jury indicated that it could not reach unanimous agreement and defense counsel moved for a mistrial. Now, defendant argues that his double jeopardy rights were violated by the second trial. Defendant maintains that there was no manifest necessity for the mistrial; instead, the trial court forced it by refusing to honor a legitimate jury request for a rereading of the transcript. Further, defendant contends that the fact that defense counsel approved and/or requested a mistrial is of no significance since the record fails to indicate that defendant himself played any role in consenting to his counsel's actions.

Once a jury is empaneled and sworn a defendant is placed in jeopardy. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971), People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972). When a defendant has been [94 Mich.App. 714] placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. Unless he consents to the trial's interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976).

Page 63

The doctrine of manifest necessity allows a trial judge to declare a mistrial when a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and People v. Williams, 85 Mich.App. 258, 262-263, 271 N.W.2d 191 (1978). We review this trial court determination, then, under an abuse of discretion standard, People v. Robertson, 87 Mich.App. 109, 273 N.W.2d 501 (1978).

The record of the first trial reveals that after deliberating for a short time the jury indicated they were "hopelessly deadlocked". The trial judge urged agreement if at all possible, with due respect for the rights of the people and the defendant, and sent the jury back for further deliberation. Shortly thereafter, the jury returned with a request for a rereading of the testimony of...